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### STATE OF MICHIGAN

COURT OF APPEALS

CITY OF EAST GRAND RAPIDS,

Plaintiff-Appellee, UNPUBLISHED April 11, 2017

v No. 329259
Kent Circuit Court TREVOR ALLEN VANDERHART, LC No. 14-010058-AR

Defendant-Appellant.

Before: M URPHY , P.J., and S AWYER and S WARTZLE , JJ.

S AWYER

, J. ( dissenting ).

I respectfully dissent.

I cannot agree with the analysis of either of my colleagues th at reaches the conclusion to
affirm.

Turning first to the lead opinion, it offers the view that the traffic stop was not lawful under MCL 257.686, but was lawful under MCL 257.683. The concu rrence disagrees with the conclusion that the stop was not justified under MCL 257.686, b ut “cannot conclude” 1 that it was justified under MCL 257.683 while stopping short of explicitly saying that it cannot be justified under that section. I, on the other hand, agree with the lead opinion that § 686 does not apply, even in light of the “mistaken understanding” standard in Heien v North Carolina , 574 US ___; 135 S Ct 530; 190 L Ed 2d 475 (2014). But I disagree that it i s justified under § 683.

Had the concurrence affirmatively stated that it disagreed wit h the lead opinion’s conclusion under § 683, I could end my dissent here, merely agr eeing with the concurrence on that point while agreeing with the lead opinion on the § 686 an alysis. But since it did not take a conclusive position on § 683, I will turn my attention to why I do not agree with the lead opinion on this point. 2

1 Opinion of M URPHY
, J ., ante, slip op at 1.

2 I do not wish to belabor the analysis of § 686 beyond agreeing with the lead opinion, including the lead opinion’s conclusion that our decision in People v Williams , 236 Mich App 610; 601-2- First, neither Judge Servaas in the district court nor Judge J ohnston in the circuit court based their decisions on § 683. I recognize that an appellate court can, and occasionally does, affirm a lower court on a different basis on a theory of “right result, wrong reason.” See , e.g., People v Miller , 498 Mich 13, 27; 869 NW2d 204 (2015). But I prefer to use th at doctrine sparingly, allowing the trial court to resolve a question in th e first instance. This is, to my mind, particularly important where, as here, the resolution involves a factual interpretation. That is, even if the lead opinion is correct on the general application of § 683 to this type of case, whether it applies in this part icular case would require a fact ual determination whether the degree of difference in the illumination of the two taillights would render the vehicle unsafe. Therefore, even if I were to agree with the lead opinion’s inte rpretation of § 683, I would at most believe that that would justify a reversal of the circuit court and a remand to the district court for
consideration of that issue.

Second, the lead opinion is inconsistent in its analysis of § 683 compared to its analysis of § 686. The lead opinion rejects applying § 686 because the Legislature set the standard for taillights at being red and visible at 500 feet. Yet, in its a nalysis of § 683, the lead opinion conveniently ignores this standa rd. That is, while acknowledgi ng that the taillight at issue was in compliance with § 686, the lead opinion nevertheless concludes that it fails to comply with § 683 despite the fact that § 686 imposes no additional specific requ irements for taillights beyond that required under § 686.

Worse yet, the lead opinion sets its own standard of “unsafe” as being a difference in illumination. If the Legislature had wanted to prohibit tailli ghts from having a different illumination level from each other, the Legislature could easil y have said so. The Legislature’s not having done so, the lead opinion seeks to make up for the L egislature’s failing and amends
the statute itself. I take heed in the admonitions of the late Justice Scalia and Bryan Garner in Reading Law: The Interpretation of Legal Texts , Thomson/West (2012), p 350:

The view of the judge as a telepathic time-traveler and collab orative lawmaker ignores the reality that it is, in Judge Easterbrook’s words, “impossible for a court—even one that knows each legislator’s complete tabl e of preferences—to say what the whole body would have done with a p roposal it did
not consider in fact.” Further: “[J]udicial predictions of ho w the legislature
would have decided issues it di d not in fact d ecide are bound t o be little more than wild guesses.” [Quoting Frank H. Easterbrook, Statutes’ Domains , 50 U Chi L Rev 533, 547-548.]

NW2d 138 (1999), does not apply here. But, having been on the panel that decided Williams , I want to express my concern that Williams should not be read too broadly. To me, there is a significant difference between a situation where there is but a single lamp on each side and one of those lamps is not functioning and the situation where there are several small lamps on each side and the lamp assembly is slightly dimmer because one or tw o small lamps are burned out. Indeed, I think that Williams , and the Legislature for that matter, merely envisioned the traditional “single bulb” lamp assembly and considered a simple set of conditions—lit or not lit. Modern design changes have made th e situation more complicated than we faced in Williams

.-3- Rather than making a wild guess at how the Legislature might ch oose to address a taillight design that allows for a differential in illumination, I am con tent to leave it to the Legislature to make any adjustments to the statute that it might deem necessar y.

Third, the lead opinion specula tes that “when one taillight is significantly brighter than the other, a dangerous condition may arise because other people may think that the person with the defective taillight was” braking all the time. Ante, slip op at 9. This analysis piles supposition upon speculation and conveniently employs rather va gue generalities. What is “significantly brighter” versus “insignificantly brighter”? Ho w do we know what other people “may” think? And even if we can read the minds of those driver s, can we be so sure that a dangerous condition “may arise”? While engaging in no greater speculation or supposition than the lead opinion, I would suggest that such a condition would c ause these “other people” to
exercise greater care, not lesser, if they believ ed that the car in front of th em might be braking.

Returning to the question of what is “significantly brighter,” the lead opinion offers no standard by which a trial court or, for that matter, a traffic officer, can make such a judgment. With many modern taillights no longer consisting of just a sing le lamp, but a collection of several smaller lamps, at what point does, in the lead opinion’ s rule, a car become unsafe under § 683? When one of the smaller bulbs is burned out? Or two? Is the “unsafe” nature of such a vehicle dependent on a particular officer’s visual acuity and h is or her ability to detect a burned out bulb in the collection? Is a car “unsafe” when a single su ch bulb is burned out and the driver has the misfortune of being followed by an eagle-eyed officer w hile another vehicle might be
“safe” with two or three small bulbs burned out but the driver has the good fortune of being seen by an officer with more typical vision? Perhaps that second ve hicle will suddenly become “unsafe” as the average-eyed officer draws nearer and finally i s able to see that one of the small
bulbs is burned out. Reliance on § 683 and deeming a car to be “unsafe” must, at a minimum, be done with extreme caution. This case could represent the first leg down the road of declaring any car that is not in “factory perfect” condition to be “unsaf e” and I doubt that that was the Legislature’s intent. 3 Indeed, in cases such as this one, it might even create the r isk that designs that might actually enhance safety become a technical lack of s afety—would not multiple bulbs
make it safer when one of the bul bs burns out and the rest rema in lit?

Rather, § 683 must be employed in those circumstances where a car is in an unsafe condition in a manner beyond the c ontemplation of the Legislatu re in drafting the motor vehicle code. For example, I doubt that the motor vehicle code specifi cally prohibits a driver from securing the car’s bumper by mean s of duct tape. Yet, I would suggest that such an arrangement presents an unsafe condition—the bumper might fall off in traff ic and present a sudden hazard for the other vehicles in the vicinity. But even this presents a factual situation to be resolved in the trial court. Which brings me back to my original point: e ven if we accept the proposition that a differential in illumination between the taillights rend ers a car unsafe, that too presents a

3 Indeed, the lead opinion, in its analysis of § 686 acknowledge s this point. Ante, slip op at 6.-4- factual determination for the trial court. It is not for this Court (or for the circuit court sitting on appeal) to make. And, in this case, Judge Servaas made no such finding. 4

Thus, I end the analysis of § 683 where the lead opinion start ed with § 686—the Legislature required a taillight that is red and visible at 500 feet and that was met here. So
Officer Lobbezoo had no basis fo r making the traffic stop in th e first place.

For these reasons, I would reverse the circuit court and reins tate the decision of the
district court.

/s/ David H. Sawyer

4 To the extent that the lead opinion relies on Judge Jordon’s f indings, I believe that reliance is misplaced. Because Judge Servaas revisited this issue, it is J udge Servaas’ findings and
conclusions that are relevant t o this appeal, not those of the predecessor judge.